The opinion
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
EMPIRIAN HEALTH, LLC, )
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) 2:22cv639-MHT
) (WO)
SPECIALTY RX, INC., )
)
Defendant. )
ORDER
This case is before the court on the question
whether it has jurisdiction on the basis of removal
jurisdiction, 28 U.S.C. § 1441(a), and diversity of
citizenship, 28 U.S.C. § 1332(a). During a conference
call held with the parties on December 2, 2022, the
parties indicated that they are not sure of all States
in which plaintiff Empirian Health LLC is a citizen
because the parties have not yet determined the
identity of all members of the LLC and its subsidiary
entities. They both requested that the court allow
jurisdictional discovery to determine the citizenship
of all members. The court will grant the request.
During the call, the parties suggested that, in
lieu of naming each member of the LLC and its
subsidiary entities, they could submit a declaration
affirming that no member of the LLC’s subsidiary
entities is a citizen of the State of New Jersey--where
defendant Specialty RX, Inc., is a citizen. This will
not be sufficient. “When jurisdiction depends on
citizenship, citizenship should be ‘distinctly and
affirmatively alleged.’” McGovern v. American
Airlines, Inc., 511 F. 2d 653, 654 (5th Cir. 1975) (per
curiam).* A negative statement as to citizenship is
generally not sufficient. See Tubwell v. Specialized
Loan Serv. LLC, No. 3:17-CV-15-DMB-RP, 2017 WL 1450598,
at *3 (N.D. Miss. Apr. 12, 2017) (Brown, J.) (“While
the defendants allege that ‘[n]o member of SLS or its
* In Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
Court of Appeals adopted as binding precedent all of
the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
2
parent is a citizen of Mississippi,’ this negative
allegation is not a distinct and affirmative allegation
of citizenship of SLS.” (citing Pel-State Bulk Plant,
LLC v. Unifirst Holdings, Inc., No. 14-265, 2015 WL
631282, at *6 (M.D. La. Feb. 12, 2015) (Dick. J.)
(“Instead of ‘distinctly and affirmatively’ alleging
the citizenship of Plaintiff, the Amended Notice of
Removal only states, in the negative, that Plaintiff is
not a citizen of Massachusetts, Delaware, or Texas.”);
13E Fed. Prac. & Proc. Juris. § 3611 (3d ed.) (“Neither
is a negative statement that a party is not a citizen
of a particular state usually sufficient, since this
type of averment does not eliminate the possibility
that the person might be a citizen of no state of the
United States or other political entity.”)). The
removing party must allege facts upon which the court
can make an independent determination as to whether it
has jurisdiction. See Travaglio v. Am. Exp. Co., 735
F.3d 1266, 1268 (11th Cir. 2013) (“When a plaintiff
3
files suit in federal court, she must allege facts
that, if true, show federal subject matter jurisdiction
over her case exists. ... Those allegations, when
federal jurisdiction is invoked based upon diversity,
must include the citizenship of each party, so that the
court is satisfied that no plaintiff is a citizen of
the same state as any defendant.” (citations omitted)).
The recently revised Federal Rule of Civil
Procedure 7.1 supports the court’s conclusion that each
member of an LLC must be named and its citizenship
provided, absent strong countervailing reasons for
protecting the names of such entities and individuals.
See Fed. R. Civ. P. 7.1(a)(2) (eff. Dec. 1, 2022) (“In
an action in which jurisdiction is based on diversity
under 28 U.S.C. § 1332(a), a party or intervenor must,
unless the court orders otherwise, file a disclosure
statement. The statement must name--and identify the
citizenship of--every individual or entity whose
citizenship is attributed to that party or
4
intervenor....”); Advisory Committee’s Notes to 2022
Amendment to Fed. R. Civ. P. 7.1 (“Rule 7.1 is further
amended to require a party or intervenor in an action
in which jurisdiction is based on diversity under 28
U.S.C. § 1332(a) to name and disclose the citizenship
of every individual or entity whose citizenship is
attributed to that party or intervenor. The disclosure
does not relieve a party that asserts diversity
jurisdiction from the Rule 8(a)(1) obligation to plead
the grounds for jurisdiction, but is designed to
facilitate an early and accurate determination of
jurisdiction.”). And while the Advisory Committee’s
Notes to Rule 7.1 acknowledge that disclosure of all
members of a party may be limited in certain
circumstances, it does not appear that such
circumstances exist here. See id. (“The rule
recognizes that the court may limit the disclosure in
appropriate circumstances. Disclosure might be cut
short when a party reveals a citizenship that defeats
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diversity jurisdiction. Or the names of identified
persons might be protected against disclosure to other
parties when there are substantial interests in privacy
and when there is no apparent need to support discovery
by other parties to go behind the disclosure.”).
The parties are further reminded that an allegation
as to an individual member of the LLC’s residence is
not sufficient to establish citizenship. See
Travaglio, 735 F.3d at 1269.
***
Accordingly, and based on the representations made
on the record on December 2, 2022, it is ORDERED that:
(1) The parties shall have a period of 60 days,
that is, until February 3, 2023, to conduct limited
discovery to determine the names and citizenship of
each member of plaintiff Empirian Health, LLC.
(2) By February 8, 2023, defendant Specialty RX,
Inc., shall file an amended notice of removal.
DONE, this the 5th day of December, 2022.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE